West v. Thomson Newspapers

CourtSupreme Court of Utah
Citation872 P.2d 999
Docket NumberNo. 920276,920276
Parties23 Media L. Rep. 1097 Terry R. WEST, Plaintiff and Respondent, v. THOMSON NEWSPAPERS, dba The Daily Spectrum; Don E. Hogun; Brent Goodey; and Rick Guldan, Defendants and Petitioners.
Decision Date22 March 1994

Terry R. West, pro se.

Randy L. Dryer, David W. Zimmerman, Salt Lake City, for defendants and petitioners.

Patrick A. Shea, Salt Lake City, for amicus Soc. of Professional Journalists.

DURHAM, Justice:

This case is before the court on a petition for a writ of certiorari to the Utah Court of Appeals. Plaintiff, the mayor of a small, southern Utah town, claims that a local newspaper published defamatory statements about him in a series of three editorial columns. The columns criticized the mayor for changing his political position on an important local issue and for attempting to "manipulate the press." The trial court dismissed the mayor's claims prior to trial. The court dismissed the claims relating to the manipulation statement on the ground that the statement was not capable of sustaining a defamatory meaning. The court ruled that the statements regarding the mayor's change of position were expressions of opinion protected by the First Amendment. In addition, the court found that the change-of-position statements were not published with actual malice, as required by New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny. The mayor appealed those rulings to the court of appeals, and that court reversed. We granted certiorari to review the court of appeals' decision. We reverse and hold that the manipulation statement is not defamatory as a matter of law and that the change-of-position statement is protected opinion under article I, sections 1 and 15 of the Utah Constitution.


The following facts are not in dispute. Plaintiff Terry R. West is the mayor of La Verkin, Utah. Defendant Donald Hogun is the publisher of The Daily Spectrum, a newspaper circulated primarily in southern Utah. Defendant Brent Goodey is The Daily Spectrum 's managing editor. Defendant Rick Guldan was at all relevant times a reporter for The Daily Spectrum and also author of a weekly column. (Hogun, Goodey, and Guldan are collectively referred to as "defendants.") Guldan's weekly column appeared on The Daily Spectrum 's editorial page alongside his byline and photograph. In his column, Guldan commented on local, regional, and national issues. He often used his column as a vehicle to criticize local politicians and government leaders.

This lawsuit arose from three columns published in The Daily Spectrum in June, July, and November of 1988. The first appeared on June 27, 1988 (the "June column"). In this installment of Guldan's column, he criticized West for several acts, including (i) telling La Verkin citizens of the need to bring business into the community while simultaneously locating his own business in another city; (ii) maintaining a Wyoming driver's license even though he is a Utah resident; (iii) using dealership license plates on his private automobiles; and (iv) helping a friend obtain a conditional use permit after a city council meeting.

Guldan leveled two additional criticisms against West. These criticisms serve as the basis for West's claims relating to the June column. First, Guldan discussed West's political position on the hotly contested issue of whether La Verkin should purchase a municipal power system. 1 Guldan stated the following:

Terry West says the city council should listen to the people. The people spoke last November in a general election on the issue of municipal power. The people said they didn't want it, and Terry West, when running for mayor, was opposed to it. However the first thing West did as mayor was ignore the wishes of the people (claiming they weren't qualified to make that decision) and reactivate[ ] the municipal power issue. Apparently West believes you should only listen to the people when they agree with you.

Second, Guldan stated that West had a problem "keeping his 'facts' straight." As an example, Guldan stated that following the burglary of a business owned by West, he initially told police that nothing was stolen but later reported that $7,000 worth of rugs were missing. According to Guldan, West then filed an insurance claim in which he valued the rugs at $13,000. Goodey reviewed and approved the June column prior to publication. He did not independently investigate the accuracy of the factual assertions contained in the article, but relied instead on Guldan's research. Hogun did not review the June column prior to publication. Both Goodey's and Hogun's actions were consistent with the newspaper's editorial policy.

Shortly after its publication, West contacted Hogun to discuss the June column. West claimed that the column contained several inaccurate statements, including its reference to filing an excessive insurance claim. West explained to Hogun the facts surrounding the insurance claim. Thereafter, Hogun met with the newspaper's attorney, Tim Anderson, to discuss West's claim. Anderson reviewed the entire column and advised Hogun that the newspaper should publish a retraction of the statement concerning the insurance claim. On June 30, 1988, the newspaper retracted the statement.

Following the retraction, West again met with Hogun to discuss the column. Among other things, West stated that he had not changed his position on municipal power and had supported it while running for mayor. West showed Hogun a letter that he claimed was sent to La Verkin citizens prior to the election which set forth his pro-municipal power position. West also gave Hogun a letter to the editor in which he refuted, point by point, the criticisms leveled in the June column.

Hogun met with Goodey and Anderson to discuss the June column and West's letter to the editor. Anderson advised Hogun that he should publish West's letter and include an editor's note again clarifying the statements concerning the insurance claim. Anderson also advised Hogun that it was not necessary to retract any other statements contained in the June column because they were expressions of Guldan's opinion.

On July 2, 1988, the newspaper published West's letter on its op-ed page. Guldan's weekly column appeared on the same page adjacent to West's letter (the "July column"). In the July column, Guldan responded to the issues raised in West's letter to the editor. Among other things, Guldan stated the following:

I said Mayor West had been opposed to municipal power during the election. The mayor claims he never took that position. Several La Verkin citizens however, have told me that prior to the election they were under the impression West was opposed to municipal power, which is why they voted for him.

... If West never actually came out before the election and said he was opposed to municipal power, he certainly did a masterful job of creating an illusion he was.

Anderson reviewed the July column prior to publication and did not recommend any changes, nor did he advise the newspaper against publication. Although Hogun and Goodey did not read the column, they relied on Anderson's advice and likewise approved it for publication.

Several months later, Goodey wrote a column entitled "How I came to 'love' La Verkin's mayor" (the "November column"). The November column appeared on the newspaper's editorial page alongside Goodey's photograph and byline, which identified him as the newspaper's managing editor. In this column, Goodey discussed the ongoing relationship between The Daily Spectrum, West, and La Verkin planning commission chairman Phil Phillips. Goodey described an apparently longstanding and bitter political conflict between West and Phillips. He also described how each had responded to, and attempted to influence, stories printed in The Daily Spectrum. Goodey claimed that Phillips had often provided the newspaper with "tips" concerning some impropriety by West, many of which turned out to be unfounded. West, on the other hand, had accused the newspaper of being biased against him and supportive of Phillips. In summarizing the overall tenor of West's and Phillips' actions, Goodey stated, "The problem I have with the two gentlemen is their repeated, and not to [sic] subtle, attempts to manipulate the press."

West sued Hogun, Goodey, and Guldan for defamation based upon statements in the three columns. 2 West claimed that the following two statements in the June column were defamatory: (i) the assertion that West changed his position on municipal power; and (ii) the claim that West "couldn't keep his facts straight" concerning the recent burglary at his store. With respect to the July column, West claimed that republishing the change-of-position statement was defamatory. Finally, West sued Goodey and Hogun for the manipulation statement in the November column.

In November 1989, the trial court dismissed the claims against Hogun and Goodey arising from the November column. It found that the manipulation statement was not capable of sustaining a defamatory meaning and therefore West had failed to state a claim upon which relief could be granted.

Defendants then moved for summary judgment on the remaining claims. In July 1990, the trial court dismissed the claims against Guldan arising from the change-of-position statements in the June and July columns on the basis that the statements were expressions of opinion protected by the First Amendment. The court also dismissed the claims against Hogun and Goodey arising from the change-of-position statements in the June and July columns on the ground that they did not publish the statements with actual malice. The court declined to dismiss West's claim against Guldan for the burglary statement, finding that it was a statement of fact, not opinion, and that West had properly pleaded actual damage. However, the court found that the...

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